American Petrofina, Inc. v. PPG Industries, Inc.

740 Corporation Sharpe, 483 one of thirteen defend- Adam Dante v. Appellee

The was alleged (Tex.1972). by Appellants for the 452 Nor can it ar- ants sued S.W.2d son, wrongful death of their Fernando gued knowledge Ap- without that even mistakenly Campos, III. Their son was reasonably pellee should have discovered police and killed an El Paso officer shot purpose The of a the stakeout. whole 1976, 29, during robbery February a on The stake- stakeout is covert surveillance. a Pizza Hut Restaurant at which son It designed out was not to be discovered. patron. Appellants’ a The theories of was Appellee expect would be unreasonable to wrong- recovery in the court below were on to discover the existence of a stakeout deprivation rights. of civil ful death and the store. points Appellants present The two Appellants’ point second of error The first is that the trial court of error. summary judg merit since the is without summary judgment on granting erred in that proof ment was sufficient show count, negligent wrongful death Appel- state action involved. there was no grant secondly that the trial court erred knowledge of the stakeout and lee had no judgment rights on the civil ing summary commingling no of state ac so there was points These are interrelated count. private party’s A private tion with action. Appel- hinge on the issue of that both construed as state actions are not to be knowledge police stakeout at lee’s party private is simply action because duty Pizza Hut. The of a business Lodge the state. Moose No. licensed invitee is one of owner towards a business 1965, 163, Irvis, v. 407 U.S. 92 S.Ct. Food reasonable care. Rosas v. Buddies (1972). The evidence suf L.Ed.2d 627 was (Tex.1975); Store, Herring 518 S.W.2d 534 support summary judgment on ficient to Hathcock, (Tex.App.—El 643 S.W.2d 235 v. Appellants’ count. Appellants’ second writ). proof summa Paso no The on and Two are Points of Error Nos. One judgment sufficient to show that as ry overruled. Appellee matter of law the did not breach court is af- The of the trial Appellants The duty its to the deceased. firmed. their an affidavit attached to submitted summary judg

response to motion prove sought

ment. This affidavit management of the Pizza Hut knew restau police had staked out the The fails in that it was

rant. affidavit hearsay not made from on and was

based knowledge. summary judg personal PETROFINA, INC., Ameri- AMERICAN hearing September before ment occurred Texas, Company can Petrofina the effective date of the new Rules Inc., Marketing, American Petrofina An is defective when it Evidence. affidavit Appellants, knowledge, but personal not on is based v. not admissi it is based on evidence instead INC., INDUSTRIES, Oil Tube Youngstown Sheet & ble court. Co., Inc., Appellees. (Tex.1962); Penn, Co. 166-A(e), Appellee Tex.R.Civ.P. Rule 2-83-133-CV, 2-83-152-CV. Nos. support its mo affidavits in presented Texas, Appeals Court suffi summary judgment tion for Fort Worth. management and em ciently that the show Hut did not have the Pizza ployees of 1, 1984. Nov. stakeout. Without police knowledge of stakeout, Appellee had no knowledge of the danger and thus potential

knowledge of the duty to the deceased. its

did breach Petrofina, Inc.,

American American Petro- Texas, Company American Pe- fina and (Fina) Marketing, Ayres Inc. trofina Ayres, individually Oil Co. Inc. and Jack Ayres Af- (Ayres), whereupon sued Fina. Ayres suits ter consolidation of two Fina, asserting against essen- cross-claimed tially the causes of action as asserted same original petition. Fina in its counts, (1) pled

In con- alternative version, (2) Deceptive violations Act, (3) contract, Trade Practices breach bailment, (6) (4) Fraud, (5) breach of unjust enrichment. asserted its (1) against Fina for indemnifica- cross-claim contract, (2) tion for breach of violations in- Deceptive Trade Practices Act and Decep- demnification for violations of the against it tive Trade Practices Act asserted PPG, (3) tortious interference with con- (5) (4) conversion, tract indemnification alleging cause of action conver- PPG’s sion. Fina asserted as affirmative defens- es, (1) rights abandonment of contractual (2) Ayres, of lach- PPG and the doctrine demands, (3) agree- es and stale ment between and itself was uncon- part Ayres. on the scionable After the trial the suits were sev- separate judgments ered and were entered. judgment against Ayres Fina and PPG’s $3,240,000 jointly severally was for in and damages prejudgment and interest actual $308,375.40; against in amount of Fina Maxwell, Godwin & Carlton and Donald $6,480,000 damages in only trebled and for Godwin, Dallas, appellants. E. for $150,900 attorneys Ayres’ fees. Banner, indemnity full for all against Fina was for McIntosh & Dobbs and Jack Benner, Falls, required paid by it PPG’s appellee amounts be Wichita for PPG Industries, $126,471.00 in actual judgment, Inc. $12,000,000 exemplary damages. and Fill- Fillmore & Associates and H. Dustin judgments, Upon appeal Fina’s from both more, Worth, appellee Ayres Fort Oil again and are the causes were consolidated Co., Inc. us. together before FENDER, C.J., Before and HUGHES dispute among case arises out of a The SPURLOCK, II, and JOE JJ.- regarding respective their parties obligations under two contracts. rights and OPINION by was executed PPG The first contract FENDER, Chief Justice. Ayres. The second was executed and These contracts Industries, (PPG) Fina. will Ayres case and In this PPG Inc. “PPG-Ayres” “Ayres- and as brought jointly severally against and referred to suit gallon respectively. background Ayres per pay- The fuel to at with Fina” $0.35 quantity upon which the contracts should be ment in full for the initial viewed is as follows. agreement. execution of the The oil was to Ayres at a rate not be “made available” to produces glass Falls PPG at its Wichita 60,000 gallons per day. Fina excess of gas plant in furnaces which utilize natural agreed agreed Ayres further to sell and primary as the source of fuel. Those fur- buy quantities” “additional of oil at equipped naces are to use diesel oil in emer- prevailing price in ac- jobber then branded 50,000 gencies they gallons and consume general- designed cordance a schedule day companies per of such use. The Fina gallon million ly to maintain a three inven- related producers are of diesel oil and other during tory by each November first their products and maintain one of year concluding paragraph The five term. storage pipeline terminals and facilities at agreement of the states: Ayres “jobber” Wichita Falls. is a petroleum products agree- sells Fina’s in the “6. After termination of this ment, Falls area. any product Wichita which has been by Buyer shall purchased hereunder winter, During-the extremely cold Feb- Buyer be delivered Seller perceived danger ruary, PPG to its set forth the manner and at the rate gas continuing supply of natural fuel be- herein.” experiencing cause it was curtailments of danger, $1,080,000 fuel. To meet such PPG took paid Ayres Ayres paid such and PPG steps provide $1,039,500, itself with a sufficient representing purchase quantity of diesel oil to enable it to contin- per gallon, per- one price of 35 cents less in the operating ue with the alternate fuel cent cash discount. necessary. con- event its use became Subsequent of the con- to the execution Ayres,

tacted which in turn contacted Fina tracts, eventuality against which PPG regarding possibility purchase failed to material- sought protect itself large quantities of diesel oil. The results A and increased ize. series of mild winters negotiations thereafter were the two gas supply to avert cur- natural combined litiga- form the of the contracts which basis gas plant, at PPG’s tailment of the natural tion. accordingly PPG found no need for the PPG-Ayres executed on contract was purchased Ayres from nor stand-by fuel it 28, 1977, August and is entitled Diesel delivery Ayres did have reason to call for Supply Storage Agreement. And It Fuel from Fina. purchased diesel oil it had “buyer” describes PPG as August of lay contracts dormant until and is for an initial term of five “seller” 1981, except monthly report for the routine provides on the effective years. It inventory of PPG’s verification 1) (August Ayres shall “sell to and date quality sampling an occasional 3,000,000gallons for PPG’s account store” testing inventory by PPG. At that of its per gallon fuel oil at of diesel $0.36 time, inventory to reduce its PPG decided $2,000 storage charge of pay that PPG a off 1,400,000 gallons and to sell that by term hereof for per month “for the entire available, price and so amount for the best storage space gallons three million of the by Ayres Ayres. Being assured informed replenish- made for provided.” Provision is available, PPG made that the oil would be by the oil used PPG at the “brand- ment of 1,400,000 gallons to arrangements to sell price” prevailing. The max- jobber then ed per gallon. Fina’s for Pride Oil Co. $0.92 60,000 at daily delivery imum rate was set begin to plan was to initial reaction to this gallons. bookkeeping arrangements for deliv- make Ayres. thereaft- ery requested by as Soon 1, 1977, Ayres and Fina September On 1977 er, that the position Fina took the Agree- their “Fuel Purchase consummated due not enforceable agreements “ini- were provided It for the sale of an ment.” deliv- refused 3,000,000 four-year inactivity gallons of diesel quantity” tial of 747 if purchase Fina’s alternate contention is that ery but offered to return the consumer, a it not qualify refus- does as did price plus interest. Fina’s offer was PPG requirements of the comply with the notice litigation brings ensued. Fina for- ed and Fina states in its brief that PPG’s DTPA. ty-one points appeal of error in its from the that it intended to file a notice to Fina clarity, judgments. purposes two For of 16, received DTPA action was on June points of error will be discussed as original petition was filed 1982. PPG’s judgments relate to the two entered below. 15, The 1979 amendments to June days the DTPA made 30 written notice a I. JUDGMENT IN FAVOR OF PPG filing prerequisite to the of suit. 1979 Fina and entered 603, TEX.GEN.LAWS, ch. sec. 17.50A at deceptive in favor of PPG was on PPG’s argues that failed to 1330. Fina since PPG practices trade cause of action. Fina raises comply prerequisite, with this it should be points question regarding ten of error precluded recovering damages. from treble finding the trial of whether court erred Computer Blumenthal v. Ameritex See that had a cause action under the Corp., (Tex.App.—Dallas 283 S.W.2d eighth point 1983, writ). DTPA. Fina avers in its deciding Before no whether error PPG is not a consumer and that proper, the notice was we must decide consumer, if qualify govern PPG does as a it did which amendments to the DTPA comply requirements with the notice this suit. the DTPA. amendatory pro- a The 1979 act contains vision which states: requirements Two must be satisfied prospectively applied This Act shall be person corporation qualify for or as a Nothing in only. this Act affects either consumer under person the DTPA. The or procedurally substantively or a cause of corporation sought acquired must have either in whole or in action arose goods by purchase or services or lease and part prior to the of this effective date goods purchased or services or leased Act. complaint. must form the basis of the TEX.GEN.LAWS, 603, ch. sec. 17.- Privity deciding is not a consideration in 56A, at 1332. The trial court found sec. 9 consumer status. Cameron Terrell & that PPG’s cause of action arose at least Garrett, Inc., (Tex. part before the 1979 amendments became 1981). agree. negotiations effective. We purchase gallons of this three million The trial court found that PPG was place fuel in 1977 and PPG claims took gallons the owner of the three million during misrepresentations of Fina such accept diesel fuel oil at all times after Fina Although dispute over preliminaries. payment September ed therefor on rights to the fuel did not come who had reasoning 1977. Fina’s under its non-con no until there would have been about argument finding sumer is that due to this if of 1977 had not tran- dispute the events court, goods did not form the in its hold- spired. The court was correct complaint basis of the when Fina refused DPTA ing amendments to the that the 1977 delivery disagree. of the fuel in 1981. We hand. applicable were to the case at misrepre allegations Fina overlooks the amendments, the 1977 Under inception purchase at the sentations provisions provided: of the DTPA notice the test set forth 1977. Under Court, brought under 17.50 a con In an action Section Supreme qualify PPG does subchapter, damages only actual sought gallons three of of this sumer. It million attorney’s fees in relation by purchase goods and reasonable fuel and those diesel expended the amount work and complaint. of its form basis See Cam Garrett, Inc., may be awarded where the court costs supra, v. Terrell & at eron ... defendant 748

(2) proves issues, that he had no written no- In special other was asked tice of complaint engaged the consumer’s to find whether Fina before the con- duct; decep- suit was whether such conduct filed.... was a practice; tive trade whether it was TEX.GEN.LAWS, 216, 1977 ch. sec. 17.50A producing damage; cause of actual PPG’s provision at 604. permit This would producing and whether it was the cause of liability to limit damages its to actual and Ayres’ damage. “Deceptive actual trade attorney’s proved fees if it it had no writ- practice” false, “any was defined as mis- complaint ten notice of PPG’s before the leading deceptive practice or act or in the Chrysler-Plymouth suit was filed. See conduct of trade or commerce.” Guerrero, 700, City, Inc. v. 620 S.W.2d 706 “False, misleading deceptive or acts or 1981, (Tex.Civ.App.—San writ); Antonio no practices” was defined as “an act or series Homes, and Geffert, Jim Walter Inc. v. capacity tendency of acts which or has the (Tex.Civ.App.—Corpus 614 S.W.2d 843 average ordinary person.” to deceive an or 1981, n.r.e.). However, Christi writ ref’d jury gave an affirmative answer non-receipt since the of notice was an af- questions each of the asked. If there is firmative defense under the 1977 amend- support any sufficient evidence and law ments, pled it should have been under TEX. grounds recovery, one these it is the 94 and an issue R.CIV.P. submitted to the duty of this court to affirm the Ridco, jury. Sexton, Inc. v. 623 S.W.2d of the trial court. 1981, writ). (Tex.App.—Fort 792 Worth no appellant’s In our “no review done, Since this was not an award of treble point, evidence” it is fundamental that the barred the failure to jury’s findings upheld by fact us if there give eighth point notice. Fina’s of error is sup is more than a scintilla of evidence overruled. port Georgetown thereof. Stedman S. six, In points through of error two 486, Assn, (Tex.1979). L. 488 & evidence, Fina asserts there nois or factu evidence, There is some more than a scintil ally support insufficient evidence to la, if the evidence furnishes some reason jury’s finding Special l(a- under Issue No. differing able for conclusions rea basis e). issue, following In that list of viola minds as to the existence of the sonable tions under TEX.BUS. & COM.CODE Con/Chem, vital fact. Kindred v. Inc. 650 (Vernon 17.50(a)(3) 1977) ANN. secs. were 61, (Tex.1983). Moreover, in S.W.2d 63 submitted to the that Fina: testing findings, must these review a. Caused or confusion misunderstand- light, evidence in its most favorable con ing affiliation, as to Fina’s connection or sidering only the evidence and inferences ques- association with the transaction in Stedman, findings. support the su which ” tion. Calvert, pra; “No Evidence “Insuf b. Caused confusion or misunderstand- Error, 38 Tex Evidence" Points ficient affiliation, ing as to Fina’s connection or (1960). as L.Rev. 361 Ayres. association with hand, when we con On other 1, Represented September c. that challenge is insuf front a that the evidence agreement 1977 conferred or involves ficient, weigh we must all the consider rights, obligations remedies case, including evidence in the that which is Fina later claimed it did not have. contrary Moty to the verdict. Burnett v. Misrepresented authority d. ka, (Tex.1980). We S.W.2d negotiate the final terms of the determine whether the verdict was so must consumer transaction for Fina. great weight preponder manifestly upon payment ance of the evidence as to be e. Warranted Estate, question, pass unjust. King’s title re 150 Tex. the fuel would In (1951). In other the fuel would be delivered on de- 244 S.W.2d words, if the must determine mand. this Court

749 “(2) goods shall be delivered free supports jury’s answers the evidence which the weak, any security interest or from other lien special issues is so or the to the buyer of which or encumbrance the at contrary to the is so overwhelm evidence contracting time of the has no knowl- the setting aside of the ing, as to warrant a edge.” trial. remanding and for a new verdict (Tex. Alviar, Garza just recently Supreme Our Court has

1965); Calvert, supra. warranty provi the of considered breach sion of the DTPA La Sara Grain Com question first address the of We Mercedes, pany v. First National Bank of support evidence to the there was whether 26, 1984). Texas, Tex.Sup.Ct.J. (May 1(e): Special to Issue jury’s answer “[that that the DTPA does There it is observed upon payment that warranted Fina] “warranty” the term nor does it not define pass and that question, fuel in title would warranties, any create and therefore war fuel would be delivered on demand.” ranty independently of must be established record, cannot find In our review of the we the DTPA. It is also said that case implied express such or warran where implied primarily are derived warranties made. Fina could not have breach ty was statute, turned to the from and Court warranty good of title since there was ed a possible Uniform Commercial Code as a good showing no Fina did not have title to also, We, implied source of warranties. under the oil it contracted to sell the which Code and look to the Uniform Commercial argues express agreements. PPG that an 2.318, through 2.312 find that Sections para warranty delivery by of was created (Vernon & COM.CODE ANN. TEX.BUS. Ayres-Fina agreement. graph 6 of title, 1968), dealing create warranties with paragraph reads as follows: That merchantability fitness of description, Agreement, After termination of this However, goods. obligation an to deliver purchased has any product which been subject any statutory goods is not the of by Buyer hereunder shall be delivered warranty find in the Uniform Commer Buyer in the manner and at the Seller to being There no cial Code or elsewhere. rate set forth herein. express implied warranty or breach of an paragraph language The in this is not shown, appellant’s delivery we sustain express warranty. create an sufficient to to point of error as to no evidence sixth argument is that Fina violat- PPG’s second finding special issue support as warranty delivery, relying implied ed an Ke). ANN. sec. on TEX.BUS. & COM.CODE question turn to the We next thereof, 2.312(a) support sec. 2.301. In any evidence whether there was quotes the law as follows: PPG’s brief evidence was sufficient whether that Obligations Parties “2.301 General findings Special Issue support jury’s obligation seller is to transfer 1(a) (b), confusion that Fina caused No. buyer and that of the is and deliver affiliation, misunderstanding as to its or pay in with the accept and accordance the transac connection or association with contract. affiliation, connec question tion in and its Against Warranty of Title And 2.312 Ayres. find with We tion or association Obligation Buyer’s Infringement; support that there is no evidence Infringement Against finding we find no confusion jury’s since sale a (a) is in a contract for [T]here this transaction to Fina’s affiliation with warranty by the seller Ayres. It is the nature its affiliation (2) ...” goods shall be delivered provide that he cannot Ayres’ business gets unless he first to his customers deliberate fuel is not misled This Court Ayres is a supplier. from his the fuel of the remainder omission or inadvertent pre Fina is (2). a manufacturer. jobber, com- language of Subsection selling directly to customers. from is cluded subsection plete text of that 750

Ayres began negotiations pur- for the not have.” agreement referred to is chase and sale of the diesel Ayres-Fina fuel March the agreement. There is no 1977. The evidence showed that June of evidence that representatives Fina’s ever Barb, year, that purchasing agent Gerald discussed agreement anybody that with but Falls, for PPG at Wichita had a conversa- Ayres, Jack and hence could not have made Canil, liquid tion with Herman the and solid any representations to regarding PPG the supplier fuel for PPG. Barb told Canil that rights, obligations remedies or conferred go through it looked like PPG would with by agreement. argues that PPG that since Ayres the contract with Oil. Canil asked Ayres found that Jack was the Barb at that time to touch base with Fina. apparent Fina, agent any representa- Franks, Barb Bill contacted Fina’s Wichita tions by Ayres concerning made to PPG manager. Falls district Barb testified that Ayres-Fina contract can be considered during Franks told him that conversation representations by made Fina. The answer that sorry Fina was it could not sell to PPG to such contention is that no issues were directly Ayres but it would back inOil regarding representations submitted by anything doing it was with PPG. Franks Ayres Jack in such capacity, spe- and the testified that he met never or talked with 1(c) cial issue under consideration is not Barb. It is this statement that is by sufficient to include repre- inference a alleging gives rise to its cause of action for Ayres acting sentation by apparent Jack causing misunderstanding confusion or re- authority agent point for Fina. Fina’s garding Fina’s connection with the transac- of error four is sustained. tion. 1(d), Ayres Turning special evidence shows that Jack was to issue only person negotiated finding who the sale of now examine the “misrep that Fina diesel fuel to PPG. PPG admits it had no authority Ayres resented the negoti any employee other contact with Fina while ate the final terms of the consumer trans being nego- terms of the contract were action for point, Fina.” On this PPG relies Siebach, Ralph plant tiated. manager for on testimony purchasing of its agent, PPG, stated at trial he that was aware of Barb, Jerry testimony which was touched bought the fact that fuel PPG from upon earlier. testifying While further Ayres, Ayres bought had turn from leading Barb question: was asked this Fina. There was also evidence that PPG “From you the conversation had with this bought Ayres had fuel from on other occa- Petrofina, executive at American did he sions. represent you they acting that were through Ayres negotiating this sale with relationship PPG was aware of the be- you?”, “Yes, to which he I parties all the answered sir. tween as admitted its own away came representatives negotiated definitely with the idea that who the deal. backing Ayres, I showing There was no at the trial were Mr. and was so that the relationship told.” Bill parties between all the Franks testified that he never was anything repre- different than what it met or talked to Mr. was Barb. sented to be. PPG cannot now claim it was Mr. testified him Barb that Franks told confused or misunderstood the connection Ayres proposal he was familiar with parties.

between the Fina’s second and Fina of March 1977. He testified also points third of error are sustained. 7th, 1977, July on thirty days some 1(c) special telephone

We now look at issue after conversation with Franks, jury’s Fina’s claim that meeting Ayres answer there was a supported by changes required thereto is not evidence. The discuss seven which PPG inquires represented if special proposal issue Fina to be made in the March September agreement changes incorporat- and that all “that seven were rights, agreement conferred involves remedies or ed the final executed with obligations 28th, Fina later August claimed it did on argument advances the Barb stated that On cross examination might good it had a faith belief that Franks the fuel have he told because long years, as five but there Ayres-Fina stored for as had Ayres Oil abandoned storage fee no discussion of the contract, conduct cannot be considered its month, $2,000 seen per that he had never argument This has been unconscionable. writing authorizing Ayres to anything in in Supreme Texas Court by addressed request and didn’t act on behalf of Fina 682 Singleton, 606 S.W.2d Pennington v. anything writing. in (Tex.1980). held that The Court there require to deceive is not a proof of intent testimony, of Barb’s as we The net effect recovery damages unless ment to of treble it, manager, Bill is that Fina’s district view DTPA requires intent. The the statute Franks, him Fina back told would conduct con definition of unconscionable light proposal. of the March Ayres in the requirement. changed partic- in tains no such proposal That was seven the “final terms of the con- ulars before argument Fina also advances agreed upon in sumer transactions” were transfer of consideration did inasmuch as a August with no hint further communica- PPG, Fina and not occur between Fina. If the statements attrib- tion from engaged in could not have unconscionable Franks are taken as true fall uted to argument conduct towards PPG. This being representation the Fina short of a Longview in Flenniken v. Bank addressed “authority to Corporations that had (Tex.1983). Co., 661 S.W.2d 705 & Trust negotiate final terms of the consumer holding in Flenniken urges PPG that the for Fina.” Point of error num- transaction rejected privity in this since it applies case five is sustained. ber necessary a DTPA action. parties to question There remains one final Supreme wrote It is true that our Court liability as to Fina’s under the DTPA and standing as plaintiff that “a establishes his guilty uncon that is whether it is of the relationship his to a a consumer terms of A jury. act found con scionable transaction, by a contractual relation- person has a cause of action when a sumer We note how- ship with the defendant.” is a commits an unconscionable act that ever, considering that the Court then was damages. TEX. producing cause of actual of a deed of an unconscionable foreclosure 17.50(a)(3) & COM.CODEANN. sec. BUS. acquired by the de- trust which had been (Vernon Supp.1977). We must decide assignment. those fendant Under bank sup to whether there is sufficient evidence grantors circumstances it was held that finding special num port jury’s issue consumers as to of the deed of trust were 2(a) ber that Fina’s conduct relation sought parties enjoy the benefits all who “unconscionable.” this transaction was such original transaction. Whether 17.45(5), The definition contained Section applicable point to the at be rule would TEX.GEN.LAWS, 600 is: 1977 ch. at we do not feel question is a which hand “(5) ‘Unconscionable action or course of decide, because we will sustain required to practice, action’ means an act or upon oth- point of error number ten Fina’s person’s a detriment: grounds. er “(A) advantage of the lack of takes knowledge, experience, or ca- ability, Fina’s no evi must sustain We person grossly unfair pacity of a point evidence number dence/insufficient degree; gross find there to be no ten because “(B) gross disparity in a be- results received and con disparity value between consider- the value received and tween properly paid. The trial court sideration involving paid, a transaction ation of law that the two as a matter concluded of consideration.” transfer together and should be construed contracts contract, being that the rule 2(a) treated as one un- is formulated issue number Special at the same separate executed contracts (B) der above. time, purpose 2.106(a) same and in the ANN. Section (Tex.UCC) Sales course of the same transaction are to be (Vernon 1968).1 All section references may considered as one instrument and this hereafter are to this may Code. There be a though they be so even are not between the part sale of a of existing goods. identified Martin, Miles v. parties. same 159 Tex. agreed proportion An of an identified bulk (1959). See also fungible goods may buyer sold to the Kelley, Jones v. (Tex.1981). S.W.2d 95 who then becomes an owner in common. together, The contracts when construed 2.105(c), (d).2 Section In the absence of light parties, in the of the acts of the explicit agreement identification occurs constitute a transaction in which the con- when the contract is made if it is for the sideration flowed from PPG in the form of goods sale of already existing and identi- purchase price the full turn fied. Section 2.501.3 bargained-for received the in consideration explicitly agreed Unless otherwise where the ownership form of title to and of three delivery moving is to be made without the gallons million of the diesel oil then con- goods, goods if already the are identified at in tained Fina’s tanks. A “sale” consists in the contracting time of and no documents passing the of title from the seller to the delivered, of title are to passes be title at buyer price. “present for a A sale” means place contracting. a the time and of accomplished by making sale which is the Section 2.401(c).4 of the contract. TEX.BUS. & COM.CODE There can be no doubt that the "Contract”; (2) "Agree- 1. Sec. 2.106. Definitions: if the contract is for the sale of future ment”; Sale”; "Sale”; goods "Contract for “Present other than those described in Subdivi- Sale”; Contract; "Conforming” (3), goods shipped, to “Termina- sion when are marked or tion”; designated by goods "Cancellation” otherwise the seller as to refers; which the (a) contract chapter In this unless the context other- (3) crops planted when the are or otherwise requires agreement wise contract and are limit- growing crops young become or the are con- relating present ed to those to the or future sale ceived if the contract is for the sale of unborn goods. "Contract for sale" includes both a young to be born within twelve months after present goods sale of and a contract to sell contracting crops or for the sale of to be goods at a future time. A “sale" consists in the harvested within twelve or months the next passing buyer of title from the seller to the a for contracting normal (Section harvest season after 2.401). price "present A sale” means a longer. whichever is accomplished by making sale which is the of the contract. Title; Passing 4.Sec. 2.401. Reservation for Security; Application Limited of This Section 2. Sec. 2.105. provision chapter regard Each of this (c) may part There be a sale of a interest in rights, obligations the and remedies of the sell- existing goods. identified er, buyer, purchasers parties the or other third (d) An undivided in share an identified bulk applies irrespective goods except of title to the fungible goods sufficiently is identified provision where the refers to such title. Insofar although quantity sold the of the bulk is not by provi- as are not the other situations covered Any agreed proportion determined. of such a chapter concerning and matters sions of this any quantity agreed upon by bulk or thereof following apply: title become material the rules number, weight may or other measure to the (a) pass goods Title to cannot under a con- buyer seller’s interest in the bulk be sold to the prior tract for sale to their identification to the who then becomes an owner in common. 2.501), (Section and unless otherwise contract explicitly agreed Goods; 3. Sec. 2.501. Insurable Interest in by buyer acquires the their Manner of Identification of Goods special property by identification a as limited (a) buyer special property Any by obtains a and this title. retention or reservation goods by (property) goods shipped an insurable interest in identification seller in of the title or existing goods goods buyer to which the contract delivered to the is limited in effect to a though goods security Subject refers even so identified are reservation of a interest. non-conforming option provisions provisions and he has an to return these and to the of the reject 9), chapter (Chapter them. Such identification can be on Secured Transactions any any explicitly goods passes buyer at time and in manner from the made title to seller to the agreed by parties. any explicitly In the absence of manner and on conditions explicit agreement agreed by parties. identification on occurs (1)when (b) explicity agreed the contract Unless otherwise is made if it is for the title identified; goods already buyer place existing passes sale at the time and and at parties goods purchased existing goods. That this case were considered the sale, goods making present at the time of the transaction as we believe is wording contracts and could have been withdrawn by: very further evidenced immediately PPG thereafter at the rate “buyer hereby buys the contracts that provided goods for. The identification of sells;” storage the fact that fees seller designa- to the contracts was made PPG; paid by required that its were PPG specific tion of Fina’s tanks numbered injury oil be insured loss or con- goods 12 and where the were pay delivery of the oil PPG was to expense. tained and stored at PPG’s storage directly from Fina’s tanks. parties un- None of the to the contracts held, previously against a This Court has perceived, der consideration here nor do claim that a transaction was one of future now, sought that oil contend the diesel purchase, very in 1981 was in fact the same diesel oil title “While it is true that term which was existence at the time the contract, con mentioned contracts were executed in 1977. In this provision clude that the that the ‘seller regard presented testimony that there hereby sells’ is sufficient to evidence a prop- is some deterioration the chemical present passage Only sale and of title. storage erties of diesel oil in an physical possession the transfer of part attractive of its contract was that the payment purchase of the balance of the storage contents of Fina’s tanks were be- Starks, price executory.” were Miles v. ing replenished daily used and on a basis (Tex.Civ.App.—Fort 590 S.W.2d 223 pipeline Big Spring refinery from the to the 875, 1979), denied, Worth cert. 449 U.S. always so that the oil relatively fresh. (1980). 101 S.Ct. 66 L.Ed.2d 96 Under these circumstances Fina contends case, the this Under circumstances of we that the contracts constituted contracts for hold that PPG became the owner of the goods the sale of at a future time. We 3,000,000 gallons of oil in 1977 and ther- disagree. specifica- The facts are that the acting eafter Fina was as a bailee of the oil carefully spelled tions of the oil were out in holding possession for the of the benefit PPG-Ayres contract and were described in owner, bailor and PPG. See Bullock v. Ayres-Fina being the contract as “of stan- Co., Lone Star Gas product specification.” Presumably, dard 1977), (Tex.Civ.App.—Waco rev’d on other 7, 10, specifications the of the oil tanks grounds, 567 S.W.2d 99 S.Ct. 577 constant, 12 and 25 remained since PPG’s (1978). In the absence of evidence representatives samples periodi- withdrew purchased by the value of the oil PPG was cally testing. goods “fungi- Such are paid, not commensurate with the amount 1.201(17) as defined in ble” Section of the showing gross there is no evidence a dis- understanding code. The that Fina would therefore sus- parity between them and we goods substitute other identical units of the points of error numbers 9 and tain Fina’s existing originally and identified as the ini- 10. quantity purchased tial does not alter the judgment held character of Since we have

basic the transaction as a DTPA present existing, fungible sale of Fina under the asserted identified (2) requires delivery completes performance which the seller his if the contract at destina- tion, physical delivery passes reference to the title on tender there. with goods, despite any (c) security explicitly agreed where reservation of a in- Unless otherwise moving though delivery of title is to is to be made without terest and even a document place; goods, delivered at a different time or be (1) despite any a is to deliver a document of particular and reservation of se- if the seller title, lading passes curity at the time when and the the bill of title interest documents; (1) requires place or authorizes the where he delivers such if the contract (2) contracting goods buyer goods are at the time of to send the to the but does if seller already delivered, require and no documents are to be him to deliver them at destina- identified not tion, buyer passes place passes at the time and title to the at the time and title contracting. shipment, place of but stand, Bystander’s Bill of Ex- look now tion and strike of action cannot we causes grant ceptions by appellees. filed We record to determine whether at the After consideration of the two motion. judgment in favor of supports record a bills, Exception prop- the Bill is we find remaining upon any of the causes PPG erly filed and will considered our action. See TEX.R.CIV.P. Bystander’s disposition of the case. The verdict, judgment In its motion for on Bill, however, proper is not and will not be it is quote, PPG states that from which appeal. in this considered upon following entitled action, damages point thirty-two, as set out: causes of In of error “ overruling court erred in asserts the trial Theory Damages for PPG’s clos objection Fina’s to counsel Violations (trebled) DTPA Actual damages Attorney’s fees paralleled this case to ing argument which _ Prejudgment interest state proceeding because such a criminal $10,279,601.63 Total scope of the evi ments were outside Con- Breach of Value 3,240,000.00 of its bargain tract and resulted in an dence adduced at trial Prejudgment interest improper and excessive award. Some _ Attorney’s fees made PPG’s counsel Total of the statements 3,799,601.63 $ Conversion damage Actual fol complained of are as being which are Prejudgment interest lows: Exemplary (13,251,500.00) ” $16,685,000.00 Total going to commit a little They just were entitlement setting crime, $2,230,500 out its claimed After collar bit of white above, requested that it “be awarded worth. greater judgment to which it shows know, they’re trying down the hall You

itself entitled.” him stealing to send fellow for $43 some people penitentiary. And a to the circumstances, we are called Under these empaneled to do you have been just like pleadings, whether the upon to determine justice. support are sufficient to proof, and verdict Petrofina, No, American you or breach can’t send judgment for either conversion There’s corporation, in motion to Huntsville. requested PPG’s the of contract Plaza inside the get can Fina way record that the no we judgment. The shows for 3,000,- walls. Fina converted the jury found that found that its gallons of diesel fuel and go

000 them free to take right it to let Is 1, per 1981 was belongs $1.08 on October to PPG and not something value court findings, bought the and gallon. up though From these it’s give it even $3,240.000. a say, to be “I have been paid you PPG’s for? Can found sat in that Fina acted with that have jury juror,” juries also found when just have sent refusing you make the very malice in to chairs before faith or these bad stealing—I for exempla- penitentiary people and assessed to the diesel fuel available ever single jury that’s of of a against Fina in the amount don’t know ry damages in this $2,230,000 theft case of $25,570,308,apportioned to PPG in the sum had a county. of $13,251,500 the sum and of say, suffi- $12,318,808. findings would be loose and Such them you could turn How money know, for conversion them the support “Well, give a you cient to damages, it not for were fine.” exemplary That will be and back. now discussed. matters

other at the bench objection an Fina made Exception of through 31 35 in the Bill numbers is shown points of error which In was over- objection That error in the overrul- filed in this case. reversible claims instructed Fina was improper counsel for regarding ruled and objections ing of its the mistrial until his motion for considering these to hold Before argument. was made mistrial The motion for filed in retired. rule on a motion must we points, Excep- and overruled. accept Bill of Fina to its this case error, (6) argument’s proba- ed harmful argument was im We find the line of action, (7) finding, and a civil effect on a material proper. The case here was ble analogy prosecution, only not a criminal and can follow an evaluation a reversal improper. conduct was made to criminal dire and beginning case with voir the whole Zavala, Harvester Co. v. International argument. all of ending closing From with (Tex.Civ.App.—Houston factors, complainant must the above n.r.e.). 1981, writ ref 'd [1st Dist.] improper that the probability that the show greater than the harm is argument caused argument com- part Another grounded that the verdict was probability is as follows: plained of and evidence. proper proceedings on each hope you that I have treated I Brown, 644 Tire Co. v. World Wide respect respect, I do you with because Cf. (Tex.App.—Houston S.W.2d [14th you a you. give And we’re about to n.r.e.). ref’d writ very, very responsibility awesome as Dist.] judges the facts in this case. And as solely dispute This arose because you respect. are entitled to You’re such parties anticipated all eventuality, an honesty. intellectual You’re entitled to they negotiated the two contracts when approach fair rather than entitled to a i.e., materialize, a severe failed to to a discus- snake oil. You are entitled gas. In in the shortage of natural wrong right of what is rather sion for an alter light unrealized need of PPG’s elementary approach that has than some fuel, called parties were nate source of nothing to do with the facts of this ease. rights respective their upon reinterpret degree And when a man who has the contracts which obligations under University law from Southern Methodist virtually for almost four had lain dormant up your stands and takes two hours terms, simplest years. Reduced to through “ain’t sprinkling time it all that, that PPG apologize parties’ I views then became things no” and like been that, increased trying enjoy because he’s to talk down wanted PPG you. selling think are in others at the What does he of its oil it to value County? trying What is he Fina contend prevailing price, Wichita inflated do? Does he think that somehow scores rights to its had abandoned its ed that PPG points? “Ain’t no.” some been by the return be made whole oil and would Against jury. price plus interest. purchase I would resent that if I served on a of its application background, such argument We find this to also mind, Reese, re to our tests described improper. We cannot condone attacks argument that the sults in the conclusion integrity upon professional ethics and reversible. complained of was opposing counsel. counsel constitut- of PPG’s The remarks Supreme Court in Our Standard charged Fina’s they that error in that ed Reese, 584 S.W.2d 835 Fire Ins. Co. to trying and was untruthful counsel was (Tex.1979), im set out the tests to which pone,” “corn jurors with mislead if it is to argument put should be proper herring,” and oil,” red “another “snake being transgress point to the of reversible. record includes all The “another untruth.” cases, in there said that such It was such and shows that of counsel arguments (1) an prove reversal must urging party provoked. invited or were not remarks provoked, error, (2) was not invited or that objec- Fina’s court overruled the trial Since trial preserved by proper (3) was that by in- tion, an was not curable the error to objection, as a motion such an predicate, of the struction, prompt a withdrawal mistrial, (4) instruct, a motion for or judge. statement, reprimand by the aor instruction, prompt a by an curable theft case to the criminal statement, The reference repri or a of withdrawal the insinuation down the hall and (5) going on argument that the judge, by the mand and that guilty a crime Fina was of nature, degree, and extent constitut- by its jurors (60,000) other who sat in the same gallons chairs had per day THOUSAND people penitentiary sent to the stealing for of diesel had option fuel. PPG of $2,230,000 than patently delivery less were error. # 4 to its Plant or other deliv- destinations, ery We believe the cumulative nature of the proper freight improper adjustment. remarks is sufficient to meet the nature, degree, requirement and extent of agreements d. were to remain in arguments’ probable Reese. As ef- (5) primary effect for a term of five fect on finding, expla- a material we see no years, writing unless extended in jury nation of the award of a total of over not terminated. twenty-five punitive million dollars in dam- the, expiration primary e. At of the ages case, except under the facts in this term, termination, upon or diesel persuaded guilty that it was that Fina was purchased fuel which had been and not just being of criminal acts like the thief previously delivered would be deliv- hall, jury tried down the and that the had a in ered Seller the manner and at the duty punish as for a crime and that as set rate out above. “just jurors” they could not turn Fina finds, f. The Court as a matter of mind, prejudice loose. To our the bias and law, 3,000,000gallons that Fina sold engendered meant argument to be diesel fuel to under a contract of counsel, coupled grossly PPG’s with the September sale dated 1977. punitive damages excessive awarded here finds, g. The Court as a matter of required proba- establishes more than the law, 3,000,000 gallons sold bility argument that such caused harm to of diesel fuel to PPG under a contract Fina. We points therefore would sustain August of sale dated 1977. through 35. finds, h. The Court as a matter of law, why recovery 3,000,000

Another reason a gallons that the of diesel permitted cannot be question goods conversion is found are the same as are considering complaint points Fina’s referred to both contracts of sale. error 29 and 30 that the trial court made an finds, law, i. The Court as matter of impermissible weight comment on the 3,000,- that PPG was the owner of the by instructing jury the evidence on gallons of diesel fuel oil at all matters the court had found as a matter of accepted payment times after Fina being complained law. The instructions September therefor on as read follows: j. obligation It is the of a seller to you Court now instructs as to the any goods prop- transfer and deliver or applies law as it this case and erty subject which are the of a con- sale, you your will be bound in obligation delibera- tract of and the tions: buyer pay goods proper- for such or ty in accordance with the contract. Every imposes obliga-

a. contract an good performance tion of faith in its TEX.R.CIV.P. 277 allows the court to enforcement. explanatory submit “such instructions and finds, The Court as a matter of b. proper to definitions as shall be enable law, that the two contracts should be render a verdict.” The rule also together and considered construed requires that the court not comment on the undertaking, one inasmuch as weight of the evidence or advise the approximately into at were entered argues the effect of their answers. Fina time, goods related to the same same that the above instructions were not neces- matter, subject and neither would as in sary jury to aid the their deliberations except in executed reliance have been therefore, impermis- they and constitute an the other. upon the execution of weight of the sible comment on the evi- argument, Fina agreements contemplate support a de- dence. In of their c. The Regents in livery rate not excess of SIXTY relies on the case of Bd. v.

757 (Tex. Co., general rule that where one “It is the 652 S.W.2d 588 Denton Const. 1988). appeals judgment, In that case the from a a rever- App.—Fort party Worth jury’s from the consid justify trial court withdrew not a reversal as to him will sal judgment rendered on certain eration and non-appealing parties. against the other in damages. The court then elements however, rule, in apply does not This findings. This jury on these structed the rights of the respective cases where was erro court found that such instruction parties are appealing non-appealing and supra neously prejudicial. Regents, Bd. of dependent or on each oth- so interwoven at 595. of the whole require er as to a reversal part as is re- judgment The instruction in this case was not where a thereof it strong Regents one in Bd. and Snyder as the v. & versed. Lockhard A.W. may 392; 411, 385, does contain some statements which Co;, 139 Tex. 163 S.W.2d helpful jury to the in their delib- have been Martin, Indemnity 126 American Co. v. However, it is clear that when erations. 697; Appellate Proce- Tex. the instructions in letters followed Texas, in 18.13.” dure Sec. required to find through j, f would be having been judgment The Fina in favor of PPG on the conversion issues. remanded, this is reversed and we hold that necessary These instructions were not and proper application case for the of the impermissible should be considered an com- rule, exception general to the above stated weight ment on the of the evidence. We against Ayres is also judgment and the points sustain Fina’s 29 and 30. and remanded. reversed judgment For those reasons a of PPG for conversion would be fore favor AYRES II. IN FAVOR OF JUDGMENT Regarding closed. the breach of contract against Fina in favor of judgment pleading proof, and would find that the Ayres for as a result of tor- was breach, dam jury verdict is untainted as to PPG-Ayres con- tious interference with ages, attorney’s and amount of fees and and also awarded total indemnifica- tract judgment against would affirm a Fina damages adjudged against tion for PPG’s $4,799,601.63 prayed the amount Ayres. However, judgment. in PPG’s motion for judgment for this court to reform the We reverse render. recovery allow such for breach of contract in its points Fina seven of error raises deprive right to would PPG of its re-assert granted for tor- complaint its claim for conversion in another trial. Ayres interference with Oil’s contract tious Accordingly, we must reverse and remand 1) basically argue: They with PPG. for a new trial. purchase by Fina of the fuel alleged breach noted, Ayres previously As we does not consti- agreement with Oil judgment against Fina in ex awarded tort; 2) sounding in of action tute a cause it, judgment against cess of PPG’s evidence, factually insufficient evi- no appealed. Ordinarily our Ayres has not finding support jury’s dence exists judgment of reversal as to Fina would 19(B) No. Special Issue under excep An Ayres. as to justify a reversal interfering with actual malice acted with however, exists as the to the rule tion relationship; contractual Ayres-PPG American recognized Great Court factually 3) no evidence or there is Lothringer, v. Ins. Co. Health Life Oil sus- insufficient evidence (Tex.Civ.App.—Corpus Christi S.W.2d damages as a result any actual tained n.r.e.). It was there writ ref’d writ interference. alleged tortious ten: ^[5] Carey, As this Tex.Civ.App, 393 S.W.2d court stated Curtis issues on the was submitted tortious interference following theory: contract (Tex.Civ.App.1965) Fina, you 15a. Do find that its fail- found in favor of onOil fuel, and refusal all the ure to deliver the diesel issues. Under the issue $9,764 prevented Ayres awarded as performing from its excess interest past; $116,725 in 28, 1977, costs incurred August contract of excess between interest cost incurred in the future and Ayres and PPG? $13,251,500 exemplary awarded you 15b. Do find that Fina’s failure to damages. proxi- deliver the diesel fuel was the sole filing mate cause of PPG’s this lawsuit In maintaining a cause of action against Ayres? contract, for tortious interference with it (1) must be established that there was a you 16. Do find that Fina’s failure to subject interference; (2) contract the act proximate deliver the diesel fuel was a willful; of interference was intentional and damages Ayres? cause of (3) such intentional proximate act was a money, any, paid sum of if if What plaintiff’s damage; (4) cause of actual cash, you prepon- do find now from a damage or loss occurred. Armendariz v. fairly derance of the evidence would Mora, 553 (Tex.Civ.App.—El S.W.2d 400 reasonably compensate Ayres for its ac- 1977, n.r.e.). Paso writ ref’d damages, any, proximately tual if caused all Not interferences with contractual re- by Fina’s failure and refusal to deliver lations are tortious nature. question? the diesel fuel in In answer- issue, ing you this are instructed that important “An right element you following recovery should consider the ele- for contract interference is that damages, any, right ments of actual if the interference must be without or justification. none other. Interference with contrac- privileged tual relations is where it re- Answer in dollars and or “none” in cents party’s sults from exercise of a own space provided by each such element. rights party possesses or where the an costs, any, a. Excess interest if in- equal superior interest to that of the past. curred plaintiff subject in the matter.” cost, which, any, if b. Excess interest Pipe Black Lake Line Co. v. Union Con probability, in reasonable will be incurred Co., 80, (Tex. struction S.W.2d in the future. 1976). See also Intern. Bank Com discounts, any, c. Loss of if which Bank, merce v. Union Nat. 653 S.W.2d 539 were incurred. 1983, (Tex.App.—San Antonio writ ref’d Diminution, any, d. if in the fair mar- n.r.e.); Terry Zachry, 272 S.W.2d 157 reputation ket value of the business 1954, (Tex.Civ.App.—San Antonio writ good Ayres. will of n.r.e.); ref’d 45 Am.Jur.2d Interference per gallon e. The fair market value 27, sec. at 304-05. 3,000,000 gallons of diesel on or There is no evidence that Fina September about 1981 in Wichita anything good acted under other than a County, Texas. required faith it was not belief you 18. Do find that would have tripled deliver oil which had in value over August performed its contract of years inactivity four in a transaction PPG, if had with delivered contemplated frequent purchases such diesel fuel? prevailing and use of the oil at the rates. Fina has acted you 19a. Do find that found, Although the trial court and this malice in connection faith or with bad concurs, court that the two contracts are to make the diesel fuel its refusals to together, say cannot be construed question available? Fina could not had conviction that have money, any, if its only by provisions it was amount bound 19c. What distributor, Ayres. Fina as exem- contract Nor with its should be assessed withholding can it of PPG’s be said that the damages? plary oil, making performance good un- which we have found to constitute con soever to its PPG, necessarily tortious seeking version as to was its contract with PPG. It is der in Ayres. complete conduct as to Neither expenses of its recover excess business be- perfect good nocence nor faith are defenses get it a loan at its usual cause could to an action for conversion. White-Sellie’s rate of interest due to the fact this lawsuit Rubber Jewelry Goodyear Co. v. Tire & Ayres seeking was filed. The reason was Co., 658, (Tex.Civ.App.—Hous 477 S.W.2d the loan was not so it could fulfill its con- 1972, writ); Chrysler ton no [14th Dist.] PPG, tract there was a with but because Malone, Corp. v. Credit problem receiva- cash flow with accounts 1973, writ). (Tex.Civ.App.—Fort Worth no ble. Whereas, complete per innocence and such There was no evidence that Oil good might very fect faith be the well basis any attempt good made to make on its justification which constitutes a de by delivering any fuel. contract with PPG fense to a claim for tortious interference previously the Because had received with a contract. jobber’s commission from and had col- question Fina also raises the $120,000 fees, storage lected it had in fact proper damages the whether measure of already received the benefit of its contract regarding the tortious interference with with PPG. contractual relations cause of action was governing The law the area of jury. Ayres initially submitted to the coun tortious interference contract is not a by saying objection ters that Fina’s was not developed area. our review of well From enough specific preserve error. The ob the cases and our review of the facts this jection made is as follows: case, find that failure to we do not Fina’s Special On Issue No. the Fina De- deliver the diesel fuel constitutes a cause object except fendants would for the sounding in of action tort. We also find damage reason items which are proper damages that the measure of was proper listed here do not constitute the jury. not submitted to the Under these damages measure of tortious inter- holdings, Ayres is not entitled to the award ference with contractual and/or business damages. of actual Since an award of case, such, relations and as to include damages necessary predicate actual is a charge alleged damages Court’s recovery exemplary damages, Ayres (a) through (e) listed Items constitute precluded recovering exempla is also from improper an submission and do not set ry damages. points sustain of error 15 We any damages proper- forth that would be and 22.

ly recoverable under such a cause of action. For such relief the Fina Defend- important We feel it to note that the pray damage ants that the would items argument previously which we found charge from be deleted the Court’s improper require reversal of this would entirety. their portion of the case had the award of actual damages approved. apparent It is been precisely point ap- This is raised on exemplary from the excessive award peal objection and the made at trial was damages (nearly 100 times the award of specific enough apprise the court of the damages) that the in all being made. actual complaint argu- probability improper affected plaintiff prevented is When exempla- as the ment. Inasmuch award performance from of his contract with a denied, being find ry damages is we do not person, plaintiff may recover ex third improper argument requires rever- that the penses put pecuni he is or other to which sal. ary making perform incurred in losses his (SECOND) Although court has treated all con- good. this ance RESTATEMENT points TORTS, (1979). trolling presented by proper 77A issues OF sec. error, parties points other sought by Ayres connection have have no what- cross-points. All of such have been con- resulted between value received and sidered, paid. Soliz, lacking all the consideration are merit and all are Miller v. (Tex.App.—Corpus S.W.2d 734 Christi overruled. 1983, writ); no Bldg. R.S. Assoc. Gen. Con money judgment granted The in favor of Devona, (Tex. tractors v. 610 S.W.2d 190 Ayres judgment is reversed and is ren- 1980, Civ.App.—Houston writ [1st Dist.] Ayres nothing. dered that take Inasmuch n.r.e.). Appellant’s point ref’d tenth er of as we have reversed and remanded PPG’s light ror should be overruled of TEX. judgment against Ayres, both Fina and (Ver &BUS. COM.CODEANN. sec. 17.44 portion Ayres’ judgment awarding of Supp.1984), non requires which against it indemnification Fina is also re- Act be: versed and the cause remanded. [LJiberally applied pro- construed and to PPG, are taxed Costs one-third to one underlying purposes, mote its which are Ayres third to and one-third to Fina. false, protect to consumers mis- leading, deceptive practices, business HUGHES, J., dissents. actions, unconscionable and breaches of warranty provide and to efficient and HUGHES, Justice, dissenting. procedures economical to secure such respectfully I I dissent that would protection. judgment affirm the rendered for PPG of ten Point error should be overruled. Basically, agree this cause. I with the reasoning in majority opinion but have points turnWe now to the of error re- disagree disposition appel- with the of garding damages under the DTPA. In point place, error, lant’s of error ten. In the first points their eleventh and twelfth of complains finding Fina Longview Flenniken v. Bank and Trust that there was no (Tex.1983) damages part by Company, 661 actual on the of PPG the S.W.2d 705 effec- jury. charge, In that, its the court submitted tively disposes argument of the Fina jury five different dates and asked the as no transfer of consideration occurred find the fair market value of diesel fuel on PPG, between Fina and Fina could not those dates. We fail to see the reason for engaged have in unconscionable conduct. submitting five different dates. The court majority opinion The concludes that there judgment awarding then entered its gross disparity was no between value re- $3,240,000 damages. appears It actual paid. disagree. and consideration I ceived simply multiplied trial court that the $1.08 According paid Ayres to the evidence PPG (the by jury fair market value found on $1,080,000 in purchase Oil 1977 for the 1, 1981) (the by 3 October million number gallons three million of diesel fuel. gallons purchased). $1,039,500 paid inOil turn Fina for the purchase gallons of three million complains of diesel issues Fina that the as sub- requested delivery evidentiary. parties fuel. PPG of the fuel in The are mitted were proper dispute Fina refused to deliver. The also in as to what the meas- damages ure of is under the DTPA. them an also had before interoffice memo Low, Fina, president from Robert vice damages to proper measure of Meek, president P.D. of Fina. That memo question for the court. assessed is a of law stated: Willis, (Tex.Civ. 596 S.W.2d 256 Johnson v. had Basically, we’ve the use of the curiam, App.—Waco), per writ n.r.e. ref'd years, million for four (Tex.1980). customer’s $1 The court stat 603 S.W.2d 828 product take awarding want their now ed in its that it was (which had the use of for that purchase. also of their we’ve PPG the benefit time.) of the DTPA allows recov- Section 17.50 damages of unconscionable found ery the definition of the amount of actual Under damages Actual has conduct, had sufficient evidence the trier of fact. are disparity those gross to find that a been defined as them before PPG, 1, 1981, v. made available. On October at common law. Brown recoverable Co., Fina met to face. Storage & Oil and face American Transfer denied, mil- (Tex.1980), requested deliver the full three cert. 449 was S.W.2d 931 575, delivery refus- gallons 66 L.Ed.2d 474 of fuel and U.S. 101 S.Ct. lion (1980). interpreted supports The courts have sec. ed Fina. evidence allowing recovery greatest re- finding 17.50 as that all the fuel was court’s proven. damages pled and quested delivery amount of actual refused on October Willis, 263; Woo Johnson v. points 596 S.W.2d at 1981. The eleventh twelfth Acceptance Corp., Southwestern Great overruled. error should have been (Tex.Civ.App.—Waco opinion that the agree majority I n.r.e.). writ ref’d point of error argument complained of damages greatest amount of Here the and should not thirty-two improper was the loss of the benefit of their would be the made. I do not condone have been necessary bargain. All one of the facts but professional the ethics upon attacks made the amount of were to determine of a lawsuit. of counsel on the other side and found the court. uncontroverted however, the presume, that We cannot remaining to be found was only The fact Stan argument harmful. In improper was of the fuel on the the fair market value Reese, dard Fire Ins. Co. Therefore, occurred. ask- date the breach (Tex.1979), the Supreme the Court set out of the ing jury the to find fair market value determining considered factors to be evidentiary issue. Under fuel was not an The improper jury argument. harm from 279, only controlling issues TEX.R.CIV.P. complainant must show: jury. to the the are to be submitted Since nature, (1) argument by its that the only the fact unde- fair market value was reversibly degree and extent constituted necessary frame the termined it was not long argument the- harmful error. How money, if issue in terms of what amount of continued, repeated it was or whether compen- any, fairly reasonably would cumu- and whether there was abandoned plaintiffs damages. for their actual sate proper inquiries. All of lative error are finding The trial court made the its closely must be examined to the evidence that the date the fuel re- was determine delivery quested and was refused was Oc- (2) probable effect on argument’s the brief, reply In tober their finding. a material argues that the use of the fair market (3) must come Importantly, a reversal improper on October 1 was because value case, of the whole from an evaluation uncontroverted evidence shows that the ends begins with the voir dire and to deliv- PPG first learned Fina’s refusal closing argument. The record September er on 1981. PPG did not weak, strong, that the cause is may issue which asked the show submit factors, From all of these very or close. determine when PPG learned breach. must show that complainant only issue submitted asked: argument improper probability that you Do find that it was on or about probabil- greater harm is than caused 18, 1981, Ayres first September grounded on ity that the verdict learned of Fina’s refusal deliver and evidence. proper proceedings fuel referred to the contract diesel Septem- Ayres Fina dated between oth- my opinion appellant’s on In view of 1, 1977? ber my review of points er of error argument I find the Sep- entire record do not The evidence at trial showed presented suffi- error. PPG inquired the deliv- be reversible PPG into tember sort that entitled it to some cient evidence gallons of fuel. On ery of 1.4 million recovery probabilities 18, 1981, from Fina and learned September about its reached would have are that that the fuel would not be from Oil liability same conclusion on from the evi- regard

dence argument. without to PPG’s judgment granted in favor of PPG

should be affirmed. disagree

I do not majority with the opin-

ion in its reversal of the suit

Fina. parte BYRAM,

Ex Richard D. Relator.

No. 2-84-222-CV. Appeals Texas,

Court of

Fort Worth.

Nov. (on Dauphinot,

Leeann ap- Fort Worth peal only), for relator. McLain, Worth,' respon-

John Fort dent. FENDER, C.J.,

Before and HUGHES JORDAN, JJ. OPINION ON WRIT OF HABEAS CORPUS JORDAN, Justice.

By original pro corpus this se habeas proceeding, brought under TEX.REV.CIV. (Vernon Supp.1984), STAT.ANN. art. 1824a Byram Relator Richard D. seeks release from his confinement in the Tarrant Coun- ty jail August from 1984 until October 19, 1984, when he released on bond

Case Details

Case Name: American Petrofina, Inc. v. PPG Industries, Inc.

Court Name: Court of Appeals of Texas

Date Published: Nov 1, 1984

Citation: 679 S.W.2d 740

Docket Number: 2-83-133-CV, 2-83-152-CV

Court Abbreviation: Tex. App.